Similar cases, diverging ends

In Pinellas cases against a man of influence and a man of none, one is offered probation.

By WILLIAM R. LEVESQUE
Published June 18, 2007

Ivy Cobb admits she knows little about courts. But Cobb says she knows enough about fairness to realize her son's getting a bad deal.

In one Pinellas courtroom, prosecutors say Josh Cobb should get 20 years in prison for firing a gun in a fight.

In another courtroom, a man accused in a similar case got a plea deal and probation.

The man who got the deal is 59-year-old Robert G. Walker Jr. of Belleair, a lawyer and former prosecutor, Clearwater's former city attorney, a friend of judges.

Josh Cobb, 20, of Clearwater is poor and unemployed and doesn't know anyone important.

"Should my son be treated differently because he doesn't have money?" Ivy Cobb said.

Prosecutors say the two cases can't be compared. Apples and oranges.

Still, a mother asks: Is this justice?

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It began on a Clearwater street in May 2005 when Josh Cobb and two Tampa men, Roderick Smith Jr. and Willie Wesley, argued.

Cobb was accused of firing a shot into the air and pointing a handgun at Smith. He tried to fire, but the gun jammed, the men told police.

As Wesley and Smith fled, Wesley heard a bystander tell Cobb: "Give me the gun, I'll shoot him." Smith heard something similar.

As Smith and Wesley drove away, a shot hit their car. Nobody was injured. Neither man saw who fired it.

Later, police said, Cobb called Smith to say that next time, he wouldn't miss.

Using a gun to commit a crime in Florida carries devastating consequences.

A conviction for firing a gun during a felony, for example, can bring a mandatory 20-year prison term. And just pointing a gun at someone in a threatening way is felony aggravated assault, which carries a mandatory 10 years.

Prosecutors charged Cobb with aggravated assault. And they offered a plea deal: three years in prison.

Cobb, denying he fired any shot, refused.

As the case progressed, Wesley wouldn't cooperate, failing to attend depositions or show up in court. Prosecutors had to threaten him with jail before he came in, Cobb's lawyer said.

Smith didn't care one way or the other if Cobb was prosecuted.

Prosecutors didn't initially seek 20 years in prison, a sign to Cobb's lawyer, John Trevena, that they doubted Cobb fired the gun. Talks to reduce the charge to a misdemeanor soon failed, and by May 2006, prosecutors sought all 20 years.

Circuit Judge Richard Luce told Trevena, "I guess the elected state attorney regards discharges (of a gun) as dead serious."

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On Feb. 4, as Cobb's case was pending, Walker walked to his neighbor's house on a tony Belleair street. He was upset by a loud Super Bowl party, police said.

As Patrick O'Reilly and his son-in-law, Scott McNay, walked out, both said Walker pointed a handgun at McNay's chest, saying, "I am tired of this ... "

McNay put his hands up. But fearing Walker would kill him, authorities said, he then grabbed the gun. As they struggled, Walker fired once, police said. Nobody was injured.

Within seconds, McNay told a 911 operator, "He tried to kill us. ... Thank God I grabbed it. He was going to shoot me in the gut."

Walker told police he fired a bullet into the dirt to scare the men. "It did not work," he told police, who thought he was intoxicated.

Walker was arrested for attempted murder and a misdemeanor charge of using a gun under the influence.

He hired lawyer Denis de Vlaming. But within days, he changed his mind and retained lawyer Doug Prior.

Besides being Walker's neighbor, Prior also offered another benefit: He was a close friend of one of the two men. Walker thought Prior could help him settle things, de Vlaming said.

Prior conducted an investigation he said was more thorough than the one finished by police.

Prior found that the two men no longer believed Walker pointed the gun at anyone. And Walker no longer thought he deliberately fired a shot into the ground. In retrospect, Walker now thought it an accidental discharge, and the two men agreed.
"Your mind becomes clearer upon reflection," Prior said.

Five days after the shooting, the two men filed a request that Pinellas-Pasco State Attorney Bernie McCabe not prosecute Walker. Days later, Walker apologized to both men in a letter.

Saying he exhibited "poor judgment," Walker wrote, "Someone might have been seriously hurt."

When McNay showed up on Feb. 21 to talk to prosecutors, he explained that he was getting so many calls from the community about Walker, including calls from Walker's wife, that he had shut off his phone.

A prosecutor wrote in an internal report, "It was clear ... that (McNay) has come under a great deal of pressure from various people to change his story or to not cooperate with prosecution."

McNay and O'Reilly declined to discuss their change of heart with a reporter.
"He seems like a pretty outstanding guy," O'Reilly said of Walker.
McNay said, "I just want this thing to go away."

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Victims file requests not to prosecute all the time. In fact, the Pinellas-Pasco Public Defender, the office representing indigent defendants, has a standard form at its front desk for the purpose.

Public Defender Bob Dillinger said prosecutors, who must take a victim's wishes into consideration, nonetheless often pursue cases despite such requests, especially if the state has evidence beyond the victim's own testimony.

In Walker's case, police had Walker's own words to police and the 911 call the night of the shooting.

Sometimes, as with Cobb's case, a reluctant victim is forced to testify with a subpoena, said Dillinger, who declined to comment about Walker.

"It's the state of Florida vs. the defendant," Dillinger said, "not the victims vs. the defendant."

Though arrested for attempted murder, Walker was instead charged by prosecutors with two misdemeanors: the improper exhibition of a firearm and using a gun under the influence.

And in a May 1 plea deal, Walker pleaded no contest to the charges and received one year of probation.

McCabe, the state attorney, said he considered aggravated assault -- the charge that could have carried 20 years in prison -- but the victims' lack of cooperation prevented it.

In an unrelated 2005 trial, one of McCabe's prosecutors explained the difference between improper exhibition and aggravated assault.

"There's no pointing (the gun) at a person" with the lesser charge, a prosecutor told a jury in a case of a man convicted of aggravated assault for pointing a gun at someone, though not firing it. He got a prison sentence. "There's no inferred threat."

The difference, she said, is fear.

Still, McCabe said no special break was given to Walker, who would not comment.

"We drop cases all the time when people don't want to prosecute," McCabe said. "Absent the gun going off, he might not have been prosecuted at all."

Prior said his client received no favoritism and denied Walker committed a felony. But he said Walker's stellar life should not have been discarded when prosecutors decided what charges to file.

"You just don't dismiss that," Prior said.

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Ivy Cobb, 47, a clerk for Pinellas County, wants publicity for her son's case. She wants everyone to know how the courts work.

Her son's attorney, Trevena, declined comment about Walker, saying he considers him a friend.

A trial for Josh Cobb, who has no adult criminal record, is set for October.

Insiders, Ivy Cobb said, get the benefit of the doubt, while poor, young, black defendants don't.

One man says he didn't point a gun at someone, and prosecutors believe him, she said. Another says the same, and he fights for his life.

Ivy Cobb said, "It doesn't seem like America."